Citation Nr: 0403855
Decision Date: 02/10/04 Archive Date: 02/23/04
DOCKET NO. 98-12 330A ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Buffalo, New York
THE ISSUE
Entitlement to service connection for a right ankle disorder.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart of the U.S.A.
ATTORNEY FOR THE BOARD
T. L. Konya, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1996 to
August 1997.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a rating decision dated in January 1998 by the
RO in Buffalo, New York, which in pertinent part, denied
service connection for a right ankle disorder.
The Board entered a decision on November 16, 2001, denying
the veteran's claim for service connection for a right ankle
disorder. The veteran appealed to the United States Court of
Appeals for Veterans Claims (Court) and in May 2003, the
Court ordered that the November 16, 2001, Board decision be
vacated and the matter remanded for readjudication in light
of the enactment of the Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000).
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, D.C. VA will notify the
claimant if further action is required.
REMAND
At the outset, the Board notes that, during the pendency of
this appeal, the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was
signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
and 5107 (West 2002). To implement the provisions of the
law, VA promulgated regulations codified at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2003). The VCAA and its
implementing regulations essentially eliminate the concept of
the well-grounded claim. See 38 U.S.C.A. § 5107(a) (West
2002); 38 C.F.R. § 3.102 (2003). They also include, upon the
submission of a substantially complete application for
benefits, an enhanced duty on the part of VA to notify a
claimant of the information and evidence needed to
substantiate a claim, as well as the duty to notify the
claimant what evidence will be obtained by whom. See
38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)
(2003). In addition, they define the obligation of VA with
respect to its duty to assist a claimant in obtaining
evidence. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R.
§ 3.159(c) (2003).
In the case at hand, the record is void of the relevant law
and regulations pertaining to the VCAA notification
provisions, see 38 C.F.R. § 3.159 (2003), and the record does
not contain correspondence to the veteran informing him of
the VCAA and specifically addressing the VCAA notice and duty
to assist provisions as they pertain to the claim currently
on appeal, to particularly include the duty, imposed by
38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b)
(2003), requiring VA to explain what evidence will be
obtained by whom. See Charles v. Principi, 16 Vet. App. 370,
374 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002).
VA's duty to assist the claimant while developing his claim,
pursuant to 38 U.S.C.A. § 5103A (West 2002), requires VA to
make reasonable efforts to assist a claimant in obtaining
evidence necessary to substantiate his claim. The duty to
assist includes obtaining a medical opinion whenever such an
opinion is necessary to make a decision on the claim. See
38 U.S.C.A. § 5103A(d) (West 2002). In the case at hand, a
medical opinion is necessary, pursuant to 38 C.F.R.
§ 3.159(c) (2003), based on a thorough review of the record,
to include the veteran's service medical records, as to
whether it is at least as likely as not that the veteran's
right ankle disorder was due to, originated in, or was
exacerbated by his active military service.
The actions identified herein are consistent with the duties
imposed by the VCAA. However, identification of specific
actions requested on remand does not relieve the RO of the
responsibility to ensure full compliance therewith. Hence,
in addition to the actions requested above, the RO should
also undertake any other development and/or notification
action deemed warranted by the VCAA prior to adjudicating the
claim on appeal.
In view of the foregoing, this case is remanded to the RO
(via the AMC) for the following:
1. The RO should send the veteran a
letter explaining the VCAA, including
the duty to assist and notification
provisions contained therein. In doing
so, the letter should explain what, if
any, information (medical or lay
evidence) is necessary to substantiate
the claim on appeal. A general form
letter, prepared by the RO, not
specifically addressing benefits and
entitlements at issue, is not
acceptable. The letter should inform
the veteran of which portion of the
information and evidence is to be
provided by the veteran and which part,
if any, VA will attempt to obtain on
behalf of the veteran.
2. The RO should arrange for the
veteran's claims file, to include his
service medical records, to be reviewed
by an appropriate VA physician. All
indicated testing should be
accomplished. It is imperative that the
examining physician reviews the evidence
in the claims folder, including the
service medical records, and is provided
a complete copy of this REMAND. A
notation to the effect that this record
review took place should be included in
the examiner's report. The examiner
should offer an opinion as to, whether
it is at least as likely as not the
veteran's right ankle disorder was due
to, originated in, or was exacerbated by
his active military service. The
rationale underlying each opinion
expressed and conclusion reached,
citing, if necessary, to specific
evidence in the record, must be noted in
the medical report, which is to be
associated with the other evidence on
file in the veteran's claims folder.
3. The veteran must be given adequate
notice of the date and place of any
requested examination. A copy of all
notifications must be associated with
the claims folder. The veteran is
hereby advised that failure to report
for a scheduled VA examination without
good cause shown may have adverse
effects on his claim.
4. The RO must review the claims file
and ensure that there has been full
compliance with all notification and
development action required by
38 U.S.C.A. §§ 5102, 5103, and 5103A
(West 2002) and 38 C.F.R. § 3.159
(2003), and that all appropriate
development has been completed (to the
extent possible) in compliance with this
REMAND. If any action is not
undertaken, or is taken in a deficient
manner, appropriate corrective action
should be undertaken. See Stegall v.
West, 11 Vet. App. 268 (1998).
5. Thereafter, the RO should
readjudicate the issue on appeal. The
RO is advised that they are to make a
determination based on the law and
regulations in effect at the time of
their decision, to include any further
changes in VCAA and any other applicable
legal precedent. If the benefits sought
on appeal remain denied, the veteran
should be provided a supplemental
statement of the case (SSOC). The SSOC
must contain notice of all relevant
actions taken on the claim for benefits,
to include a summary of the evidence and
applicable law and regulations
considered pertinent to the issues
currently on appeal. A reasonable
period of time should be allowed for
response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
_________________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).